INTERNATIONAL PROTECTION OF

ENDANGERED SPECIES:
THE STEPS THAT SHOULD BE TAKEN

Philip Weinberg*

Whether or not we can save endangered species depends upon

what the great conservationist writer, Aldo Leopold, termed our
"ecological conscience." 1
Other environmental issues, such as water and air pollution, the
disposal of solid waste, and toxic chemicals have much more of
an immediate effect on our lives, and, if these problems were
solved, society would reap direct health and economic benefits.
But that is not the case with endangered species, where the short-
term economic considerations unfortunately militate against the
conservation of such species. After all, the skins, tusks and horns
of many endangered species can be sold for considerable amounts
of money.
In Third World countries with rapidly growing populations,
economic considerations also militate against the preservation of
the habitats of endangered species. This has created a greater
problem than the actual hunting of these species. For these
reasons, there is clearly an urgent need for international control
2
of these environmentally threatened areas.
Both the habitat countries and the consuming countries benefit
economically from the killing and sale of endangered animals and
the resultant sales of various articles made from the skins and
horns. But before I address this matter any further, I would like
to give you a brief overview of the kinds of national and local
statutes that existed prior to the adoption in 1973 of the
Convention on International Trade in Endangered Species of
* Professor of Law, St. John's School of Law, St. John's University;
A.B., 1955, University of Pennsylvania; J.D., 1958, Columbia University.
1. See Holly Doremus, Patching the Ark: Improving Legal Protection of
Biological Diversity, 18 ECOLOGY L.Q. 265, 272 n.48.
2. The issue of endangered species was one of the first major
environmental concerns to draw international attention, and some species have
already received meaningful international protection. See infra note 4.
 TRANSNATIONAL LAW [Vol 3

Wild Fauna and Flora (CITES) 3 which is the major international

treaty currently in force.
Before CITES, some countries had enacted statutes which im-
posed a limited control over the killing of certain species. In the
United States, for example, a federal statute called the Lacey
Act 4 was passed in the early decades of this century. Soon after it
was passed, however, it became evident that the Secretary of the
Interior, who was responsible for designating which animals
could be classified as "endangered," 5 frequently listed species
that were already beyond the point at which they could survive in
the wild. Some complained that the Secretary's list was more
commemorative than protective.
The New York state legislature, in 1970, enacted the Mason
Law, 6 which is now part of the Environmental Conservation
Law. 7 The Mason Law provided disincentives for the taking and
killing of endangered animals in their habitat by prohibiting the
sale in New York of various endangered animals as well as any
articles containing their skins. 8 This statute was able to go further
than the very limited federal protection offered by the Lacey Act
since it protected entire species of tiger, alligator, and crocodile,
to name a few, as well as several others. In A.E. Nettleton Co. v.
Diamond,9 the New York Court of Appeals pointed out that,
since wildlife was a legitimate concern of the people of the state
of New York, the state could, under its police power, legislate to
bar the sale of these animal hides. 10
Shortly thereafter, similar laws were enacted in other states,
and Congress amended the Lacey Act, transforming it into what

3. Mar. 6, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 [hereinafter

CITES].
4. 16 U.S.C. §§ 3371-3378 (1982).
5. See infra note 11, § 1533(1).
6. N.Y. AGRIC. & MTs. LAW § 358-a (McKinney 1970) (transferred to
N.Y. ENVTL. CONSERV. LAW § 11-0536 (McKinney 1976)).
7. Id.
8. See id. para. 3.
9. 27 N.Y.2d 182, 264 N.E.2d 118, 315 N.Y.S.2d 625 (1970), appeal
dismissed sub nom. Reptile Products Ass'n Inc. v. Diamond, 401 U.S. 969.
10. id. at 633.
19921 ENDANGERED SPECIES

is now the Endangered Species Act of 197311 (the Act). The Act,
in addition, continues to restrict killing, imports, and sales and
furnishes legal protection to the habitats of some species in the
United States by requiring federal agencies to take into account
the destruction of the critical habitat of an endangered species
caused by federal activity. 12 This provision of the Act received
widespread recognition in the famous "snail darter" case 13 which
involved the building of a dam on the Tennessee River. The
United States Supreme Court, in an eloquent decision, held that it
was not the Court's role to balance the equities in deciding
whether or not the dam should be enjoined, as Congress had
already spoken on the issue. 14 In fact, Congress had gone as far
as to say that the critical habitat of an endangered species may
not be injured by federal activity. 15 This case led to subsequent
Congressional attempts to override the Act, but none was
successful.
One other important change that has occurred under the Act has
been the expansion of the Secretary of the Interior's list of ani-
mals that are to receive federal protection.
Now I would like to focus on the main event, which is the in-
ternational protection of endangered species. The main source of
international protection is CITES. 16 Since this treaty was
adopted, over 100 countries have signed it, including most of the
major countries of the world. 17 CITES was drafted at the request
of the International Union for the Conservation of Nature and
Natural Resources 18 as it was recognized early on that the
statutes of individual nations were ineffective in that they failed

11. 16 U.S.C. §§ 1531-1543 (1973).

12. See e.g., id. § 1531(c)(1).
13. Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).
14. Id. at 194.
15. Id. at 184-85.
16. See supra note 3.
17. See Michael J. Glennon, Has InternationalLaw Failed the Elephant?,
84 AM. J. INT'L L. 1, 10 (1990). As of the time that the article was written in
1989, 103 states were parties.
18. See Sudhir K. Chopra, Introduction: The Convention on International
Trade in Endangered Species of Wild Fauna and Flora, 5 B.U. INT'L L.J.
225, 226 (1987).
 TRANSNATIONAL LAW [Vol 3

to afford endangered species the basic protection they needed to

survive.
Many Third World countries have laws which protect endan-
gered species from local poachers, but they are difficult to
enforce because of the economic considerations previously
mentioned. The central idea behind CITES, therefore, was to
finally put an end to poaching by providing some kind of
international protection to those animals whose numbers had been
19
systematically declining.
The drafters of CITES sought to prevent the international
shipment of endangered species and their skins or articles made
from such species. 20 Under CITES, animals are listed either in
Appendix 1, as animals threatened by extinction, or in Appendix
2, which means that they are likely to face extinction unless cer-
tain limits are placed on the killing of these animals. 2 1 To give
you some perspective on the numbers involved, there are ap-
proximately 300 species that face extinction each decade. 22
International trade in wildlife, especially exotic kinds, amounts to
a declared value of five billion dollars annually. 2 3 The American
market alone accounts for as much as one third of that value. 24
So there are obviously big business interests looking to use all of
their economic clout to prevent the enforcement of CITES.
CITES requires each subscribing country to have a wildlife
management authority as well as a scientific authority. 25 In order
to ship goods made from endangered species in international

19. Id.
20. See generally John B. Heppes & Eric J. McFadden, Convention on
International Trade in Endangered Species of Wild Fauna and Flora:
Improving the Prospectsfor Preserving Our Biological Heritage, 5 B.U. INT'L
L.J. 229 (1987).
21. See generally Favre, Tension Points Within the Language of the CITES
Treaty, 5 B.U. INT'L L.J. 247, 249-52 (1987).
22. See Heppes, supra note 20 (citing to H.R. REP. No. 167, 96th Cong.,
2d Sess. 3 (1979)).
23. See Kosloff & Trexler, The Convention on International Trade in
Endangered Species of Wild Fauna and Flora: Enforcement Theory and
Practicein the United States, 5 B.U. INT'L L.J. 327, 328-29 (1987).
24. Id.
25. CITES, supra note 3, art. IX(1)(a)-(b).
19921 ENDANGERED SPECIES

commerce, the management authority must first certify that the

animal has been legally taken. 26 The scientific authority has to
then certify that the taking of that animal is not going to lead to
27
its endangerment.
In 1984, however, the World Wildlife Fund did a close study
of how well the treaty was working and found that there were
widespread violations. 2 8 Many countries, including both the
habitat and consuming countries, were simply failing to report
animals that had been taken in violation of the treaty. There was
also a great deal of laundering. This could be done, for example,
by killing an animal in one country and shipping it, or pretending
to ship it, to another country, and then having a false bill of lad-
ing issued from that third country where the animal does not exist
and calling it something else. This was one way to circumvent the
prohibition on the killing of animals on the endangered list.
Countries like Paraguay, which contain almost no endangered
species, became prime export centers. Burundi, which does not
have any elephants, became a prime location for the shipment of
ivory to the rest of the world. The laundering continues to take
place.
Another problem is that in many countries, including the
United States, there are too few customs officials with sufficient
training in this area. The United States, for instance, even with
its huge federal budget, only has a total of fifty-five customs in-
spectors at the nine ports of entry through which endangered
species and their articles can be brought. This problem is com-
pounded by the fact that not all fifty-five inspectors are working
on any one given day. These numbers are grossly inadequate for
combatting a problem of such magnitude.
The sanctions that can be imposed under CITES are also inade-
quate. There need to be sanctions that would allow countries to
effectively cut off all trade in wildlife or wildlife products with
proven violators of the treaty. Even more drastic actions should
be allowed to be taken against those countries that engage in re-

26. Id. art. III(2)(b).

27. Id. art. III(3)(a).
28. See Heppes, supra note 20, at 233.
 TRANSNATIONAL LAW [Vol 3

peated charges. Currently, a signatory state can still deal in en-

dangered species with a non-signatory state, and these dealings
constitute as much as thirty percent of all such trade. To trade
with a non-signatory state, the treaty simply states that the non-
signatory has to have "comparable documentation" that
"substantially conforms" to CITES.29 These terms are quite
vague, however, so there is ample opportunity for slippery con-
duct on the part of the individuals who make out bills of lading
and others who merely wink at these vague requirements and then
go on to violate the spirit of the treaty.
Even in the European Community (EC) there are problems
with the enforcement of CITES. 30 It has been pointed out that
there is a built-in tension between the EC itself and CITES. The
EC is supposed to be designed so that all trade restrictions among
the member nations are eliminated. The problem arises because
of the differing statutes on endangered species that existed in
countries, such as France, England, and Germany, prior to the
formation of the EC and which are still in effect. No decision has
yet been made as to which country's laws should be used or
whether each country should continue to use its own laws, but it
is something that the EC is going to have to address soon.
One other factor that greatly diminishes the effectiveness of
CITES is that signatory states are permitted to adopt reserva-
tions. 3 1 This means that the reserving state can basically suspend
its obligations under the treaty with regard to a particular species
whenever it so desires. Japan, for example, although a signatory
from early on, continues to import the olive ridley turtle and the
green sea turtle, both of which are known to be endangered spe-
cies. Japan is not technically in violation of CITES since it has
exercised its right of reservation pursuant to Article XXIII of the
treaty.

29. CITES, supra note 3, art. X.

30. See generally Thomsen & Brautigan, CITES in the EuropeanEconomic
Community: Who Benefits?, 5 B.U. INT'L L.J. 269-87 (1987); Anthony
D'Amato & Sudhir Chopra, Whales: Their Emerging Right to Life, 85 AM. J.
INT'L L. 21, 46 (1991).
31. See CITES, supra note 3, art. XXIII.
1992] ENDANGERED SPECIES

CITES contains two other significant flaws. It says nothing on

the trade in endangered species which takes place within a par-
ticular country's own borders, 32 and, as mentioned earlier, it
does not address the issue of the protection of the various habitats
themselves.
There has been a serious question in the United States as to
how much extraterritorial effect our own Endangered Species
Act 3 3 has had to Section 7 of the Act. 34 Section 7 provides that
federal agencies are to consult with the Department of the Interior
on any project that is likely to affect the critical habitat of an
endangered or threatened species. 35 One question that arises,
however, is whether Section 7 applies if, for example, the Army
Corps of Engineers were planning to build a dam in a foreign
country. 36 Under the Carter Administration, soon after the
adoption and ratification of CITES, the Department of the
Interior correctly stated that Section 7 would apply in such a
37
scenario.
However, during the Reagan Administration, the Department
of the Interior, under the ineffable James Watt, took a different
stance. It implemented changes limiting Section 7 of the Act to
activities only within the country. 38 When Mr. Watt was asked to
rationalize his department's position, his lawyers stated that the
department did not want to interfere with the sovereignty of other
39
countries.
In actuality, however, the United States would only be direct-
ing the actions of its own federal agencies within another coun-
try's borders. Clearly, there is no valid argument that we would

32. See id. art, VII(l) for the precise language used.
33. See 16 U.S.C. §§ 1531-1543.
34. Id. § 1536.
35. Id. § 1536(a)(4).
36. See Henry J. Blum, Note, The Extraterritorial Application of Section 7
of the Endangered Species Act, 13 COLUM. J. ENVTL. L. 129, 131 (1987).
37. The entire Endangered Species Act by its very nature applies to the
protection of species from other nations. Most of the animals on the
endangered list are not native to the United States at all (i.e., the tiger, the
elephant, etc.).
38. 51 Fed. Reg. 19,926 (1986) (codified at 50 C.F.R. §402).
39. Blum, supra note 36, at 131-32.
 TRANSNATIONAL LAW [Vol 3

be interfering with another country's sovereignty. Nonetheless,

the view of the Reagan Administration has yet to be reversed un-
der our current "environmentalist president" George Bush.
At this point, I would like to talk about two species that are
particularly threatened right now-the elephant and the
rhinoceros-and the steps that have been taken to try and revive
their numbers. Fortunately, for the elephant at least, there are
signs of a happy ending. Ivory is the main reason elephants are
hunted and killed. At one point, the price and international
demand for ivory were such that people were going to the rain
forests of Africa and, to a lesser extent Asia, with Uzi machine
guns-not content to use rifles-to kill as many elephants as
possible. 40 Armed with a machine gun, the "hunter's" task of
removing tusks and selling them in international commerce is not
one of great bravery, especially since elephants travel in herds.
The United States, along with most of the other developed
countries, has finally agreed that the elephant is in fact an endan-
gered species. 4 1 Even Hong Kong and Japan-where a large
proportion of the ivory ultimately wound up and got worked into
fine carvings to be sold elsewhere-have recently agreed that the
elephant is in need of protection. 42 Under CITES 4 3 , the elephant
is now designated as an Appendix 1 species, which means that it
is recognized as being formally threatened with extinction. 44 As a
result, international trade in ivory has greatly diminished.
There are still three countries in southern Africa, however,
which continue to trade in ivory. 45 South Africa, Zimbabwe, and
Botswana claim that they are able to cull existing herds of ele-
phants by simply waiting for them to die or by taking just a

40. See Glennon, supra note 17, at 4.

41. See id. at 10. But see Schneider, Bush May Back Renewed Elephant
Hunting, N.Y. TIMEs, Feb. 27, 1992, at All ("[T]he Bush Administration
said . . . it was sympathetic to a proposal by South Africa and other African
nations to relax protections and open international trading in elephant hides
and meat.").
42. But see Glennon, supra note 17, at 16-17.
43. See CITES, supra note 3.
44. Id. art. 11(1).
45. Glennon, supra note 17, at 17.
1992] ENDANGERED SPECIES

few. 46 They further claim that there is no problem with the

elimination of the species within their borders, as their approach
is a kind of sustainable growth. 47 Some have criticized their ap-
proach as cynical, but the jury is still out on who is right about
that. It is clear that, at least in Zimbabwe, great steps have been
taken to involve local populations so that they may reap some
economic benefits. For example, that country's approach has
fostered a need for game wardens which has promoted local
employment, so perhaps the system will work.
With regard to ensuring the continued existence of the elephant
and the rhinoceros, among other endangered species, there are
essentially two views: the "management view" espoused by the
aforementioned three countries and the "embargo view." 48 Those
that have adopted the management view believe that the traffick-
ing in articles made from endangered species will never com-
pletely cease, so it should only be limited and controlled. Using
this approach, countries would strive for sustainable growth with
periodic harvesting, as opposed to outright "clear-cutting."
Those that subscribe to the embargo view call for a total ban on
the trade of endangered species, the rationale being that, even if
there is heavily regulated trade, there will inevitably still be
poaching. The economic forces that motivate poachers are simply
too great. Poachers outnumber the game wardens and are armed
with Uzi sub-machine guns while the wardens carry 22 millimeter
rifles. The management view, therefore, may be unworkable-a
view I share.
There are those who say that there are many similarities be-
49
tween drug trafficking and trafficking in endangered species. I
submit that they are quite different, however, because, unlike
certain narcotic substances which are bountiful, an endangered
species is a commodity with a very limited supply. Furthermore,
with rigorous enforcement, I believe that poaching can be
stopped.

46. See id. at 17 n. 147.

47. Id.
48. See generally id. at 22-28.
49. See id. at 23-25.
 TRA NSNA TIONAL LAW [Vol 3

It is unreasonable, however, to expect countries like Kenya,

Tanzania, and India with their limited resources and rapidly in-
creasing populations to overcome the problem on their own. The
obligation, rather, rests on the entire world, especially the more
developed countries, such as the United States, Canada, Japan
and Western European countries. The solution would not require
an extremely large amount of money. Some have estimated that
one hundred million dollars a year given to a country like Kenya
would provide the funds necessary to hire enough wardens and
supply them with the vehicles, weapons, radios and other equip-
ment that they would need. Such an amount would not be a diffi-
cult sum to raise among the major industrial nations, yet it is not
forthcoming. If this cannot be done, sustainable development for
at least certain animals, like the elephant, seems to make the most
sense.
For the rhinoceros, unfortunately, sustainable development
does not seem to be possible, and the story of the rhinoceros is a
sad one. In some East Asian countries, the horn is regarded as a
valuable aphrodisiac. 50 East Asian peoples also grind the horn
into powder and use it for medicinal purposes. 5 1 In other coun-
tries such as Yemen on the Arabian Peninsula, the rhino horn is
carved into a sheath for daggers.
Scientists are eagerly trying to convince people in these coun-
tries that there are substitutes available, such as the antelope horn
or plastic materials, that can be used as a dagger sheath. They are
also attempting to show that the alleged aphrodisiac properties of
the rhino horn have never been scientifically proved. 52 But de-
spite this urging by the scientific community, rhino horns con-
tinue to be removed and grinded, and the rhino population in
Africa has been sharply reduced. 53 Removing the horn from the
54
rhino without first killing it is simply not a viable alternative.

50. See M. PENNY, RHINOS ENDANGERED SPECIES 69 (1988) (this belief

is most likely due to the imagined sexual prowess of the rhinoceros).
51. See generally id. at 69-79.
52. See Glennon, supra note 17, at 16.
53. See generally PENNY, supra note 50.
54. It is possible to surgically remove the horn of a rhino adult without
killing it, but such surgery cannot for practical reasons be routinely performed
1992] ENDANGERED SPECIES

The future of the rhino therefore is bleak, and there does not
seem to be much hope at this time for any sudden turnaround.
In closing, we should address the question of how it might be
possible to control the habitats of endangered species. In coun-
tries with rapidly increasing populations, where it seems to be
necessary to turn rain forest into farm land and cut down trees for
fuel, there are certain measures that can be taken. Population
control is one such measure.
Another possibility is to come up with devices to reduce the
need for wood, and such devices are in fact currently on the mar-
ket. There are stoves being sold in underdeveloped countries, for
example, that eliminate the need to chop down great amounts of
wood to prepare daily meals.
One other alternative is the use of solar energy, which is a
great potential asset available to these countries. The sun's rays
can be pinpointed through magnification, decreasing the need for
much fuel.
Finally, there is the possibility of harvesting at least some of
these animals for sustained yield, using as a model the Zimbabwe
approach toward its elephants. This approach might be applicable
to alligators, turtles and certain other kinds of animals as well.
The problem is that these alternatives need to be subsidized by
either the United Nations or by the developed nations. With the
cold war ended, we may be able to expect more cooperation.
We are talking about a fundamental part of the world's
heritage, and it has been wisely said by the naturalist William
Beebe that one must create another heaven and earth before an
extinct species can be recreated. 55 The moa and the passenger

in the rain forest. Nonetheless, research is being done on rhinos in Wangie

National Park in Northern Zimbabwe where the horns of fairly mature rhinos
are being removed to see what effect this will have. In addition to the research
on the removal of rhino horns, "cropping procedures" are also being studied in
Zimbabwe. Experiments have also been performed on young rhinos whereby
the horn is removed and replaced with a red plastic horn which will in theory
deter poachers from killing them, but it is too soon to judge the efficacy of this
method.
55. See Win. Robert Irvin, When Survival is at Stake: A Proposal for
Expanding the Emergency Exception to the Sixty-Day Notice Requirement of
100 TRANSNATIONAL LAW [Vol 3

pigeon, and many other species, have already become extinct due
to man. The rhino and the condor, as well as others, are in
extreme danger of following in their footsteps. If the international
community fails to act, I do not believe posterity will ever
forgive us.

the Endangered Species Act's Citizen Suit, 14 HARv. ENVTL. L. REv. 343,
361 (1990).